We don’t know how the current controversy over the nomination of Judge Brett M. Kavanaugh will end, but one thing people seem to agree on is that the Supreme Court is facing a legitimacy crisis. If Americans don’t have faith that the highest court in the land is something other than an instrument of momentary partisan advantage, thoughtful observers say, then the foundations of democracy are weakened. Both parties should do something to address this dangerous situation.
None of that is necessarily false. But when we talk about the Supreme Court’s legitimacy, there are some things we have to make clear. If we cram this issue into the standard “both sides are at fault” frame, we have seriously distorted what has happened and what’s going to happen.
Does the Supreme Court face a legitimacy crisis? Perhaps, depending on how you define “crisis.” But it is almost entirely the fault of Republicans — and Republicans will never lift a finger to do anything about it.
We don’t have to go back that far to recall a time when confirmation of a president’s nominees, except in cases of truly unusual scandal, was a given. There was plenty of political drama surrounding the court and its decisions, but members of both parties would regularly vote for a nominee from the other party. Antonin Scalia was confirmed 98 to 0; Anthony M. Kennedy was confirmed 97 to 0; Ruth Bader Ginsburg was confirmed 96 to 3; and Stephen G. Breyer was confirmed by an 87-to-9 vote.
But somewhere along the way, partisan disagreement became enough of a grounds for rejecting a nominee, and now we’ve reached a point where we expect nearly all senators to automatically vote against a nominee from the other party. How did that happen?
You can tell a long story with lots of details, but what brought us to this point were two events in which Republicans decided to abandon established norms, as well as any sense of propriety, for the simple goal of winning. The first was Bush v. Gore, and the second was the Supreme Court nomination of Merrick Garland.
Bush v. Gore, for those too young to remember, was the 2000 case in which the five conservative justices on the Supreme Court halted recounts then going on in Florida, despite the fact that large numbers of votes were in dispute and the state was in midst of trying to figure out who actually won. If you are indeed that young, it is probably impossible for you to understand the utter madness of that episode in our history, and how unlikely it seemed that there would actually be a fair count of the vote — particularly when Republicans staged a riot that succeeded in shutting down the counting of ballots in one county, and that the entire process was being overseen by Katherine Harris, who was Florida’s secretary of state. Harris was also the co-chair of the George W. Bush campaign in the state, then governed by Jeb Bush.
When it looked as though there might be an accurate count, the conservative justices on the Supreme Court stepped in and put a stop to it, giving George W. Bush a 537-vote victory in Florida and, with it, the presidency. The court had issued bad decisions before, but likely never one so nakedly partisan, in which five justices simply decided to install their guy as president. In a revealing part of the decision, the justices wrote that, while they were handing the White House to Bush, future appellants should not use the case as precedent: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
In a blistering dissent, Justice John Paul Stevens wrote, “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
Since then, conservatives treat Bush v. Gore as an object of shame, something that should be neither examined nor discussed. What matters is that they won.
After Bush v. Gore, it became impossible to seriously argue that the Supreme Court looks down on us from Olympian heights where the daily back and forth of partisan politics is of no concern, that judges are merely neutral arbiters of the law and the Constitution. Yet that is exactly what conservatives continued to argue and still do. When a Republican president nominates a justice, the Republican Party pretends it neither knows nor cares how that nominee would rule on things such as abortion rights or union protections, and the nominee claims that he or she is merely an umpire calling balls and strikes, with no ideological interest at play. This is a joke, but as long as everyone says it with a straight face, you can keep up the deception.
Which brings us to the second blow to the court’s legitimacy: Merrick Garland. In 2016, following the death of Scalia, Senate Republicans decided that, so long as there was a Democrat in the White House, they would allow no Supreme Court nominee to be considered. It was appalling, it was despicable, it was anti-democratic, it was an affront to our entire constitutional system — and you could hardly find a Republican anywhere who dissented from the strategy. Once again, all that mattered was that they won. And today, we have a president elected by a minority of voters appointing justices confirmed by a Senate with a majority elected by a minority of voters, who will issue rulings supported by a minority of voters.
So when we talk about the court’s legitimacy crisis, let’s not forget who brought us here. Nor should we forget that Republicans don’t care whether there’s a legitimacy crisis. We could find out tomorrow that Kavanaugh goes on a multi-state killing spree every year for his summer vacation, and you’d still get 48 or 49 Republicans to vote for him, because winning is all that matters. If he’s going to vote to restrict abortion rights, to roll back civil rights and to enhance corporate rights, they just don’t care.
So what should be done? We can talk about institutional reforms, such as moving to staggered 18-year terms for justices, which would mean each presidential term would see two appointments, making each one less a life-or-death struggle. But the truth is that, once President Trump’s nominee is installed (whether it’s Kavanaugh or someone else), we will begin a conservative legal revolution, one whose scope few appreciate and which most of the public will find horrifying — thereby further eroding confidence in the court.
It’s possible that, partly in response, Democrats will win a succession of presidential elections and be able to shift the court’s balance in their favor. In the end, that may be the only thing that restores the court’s legitimacy. But as long as Republicans have anything to say about it, winning will be all that matters.